Washington Law Review

Article

Regulating Bite Mark Evidence: Lesbian Vampires and Other Myths of Forensic Odontology

December 20, 2019 | 94 Wash. L. Rev. 1769

Abstract: This is the third piece in a trilogy that examines and evaluates the standards that American courts apply to admit forensic “science” evidence proffered by prosecutors in criminal trials. The first two articles in the trilogy expose the criminal courts’ on-going practice of admitting false forensic evidence that is virtually always excluded in civil cases. They also advance a panoply of procedural and evidentiary solutions aimed at reforming this legally unviable discrepancy. Those solutions are court-centric insofar as they advocate for, among other things, open and early criminal discovery, pre-trial Daubert hearings to challenge evidence and experts, and court-appointment of qualified forensic science experts.

This Article takes a comprehensive look at the criminal courts’ treatment of scientifically rebuked bite mark identification evidence. Bite mark identification testimony is unreliable and, as a result, is responsible for dozens of wrongful convictions. Moreover, bite mark analysts have targeted sexual minority defendants by baselessly theorizing that bite marks are more common in crimes involving sexual minorities, generally, and lesbians, more particularly. American courts continue to admit bite mark identification testimony notwithstanding its lack of scientific validation, recurring role in wrongful convictions, and espousal of lesbian vampire mythology.

This Article, therefore, does not rely on the criminal legal system to keep faulty bite mark identification evidence out of the courts. Instead, it demands that the scientific community of forensic odontologists and dentists police flawed bite mark testimony. Specifically, it calls on the national and state forensic odontology oversight entities to enhance their weak or nonexistent regulation of bite mark proponents and fulfill their legal mandate to protect the public from unscrupulous and unsupported expert testimony. It further proposes that state boards of dental practice satisfy their statutory mandates and discipline licensee dentists who provide faulty bite mark identification evidence in court.

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